Elena Kagan: How Can Giving a Boatload of Money to Poor People be Unconstitutional?

I have the Elena Kagan sound bite. I know that I have total, 100% credibility with you. When I tell you something, you know it’s true. But I want you to hear it. This was Wednesday at the Supreme Court during the third day of oral arguments on the constitutionality of the health care reform law. This is the most junior justice, Elena Kagan, a former solicitor general for Obama, who openly cheered the passage of Obamacare when it went through the House. And she then worked on its defense at the Supreme Court. She should have ethically recused herself. But she didn’t. And here is her opinion, in the form of a question to one of the lawyers, doesn’t matter who. She’s talking about the commerce clause and coercion. She doesn’t understand the argument that forcing people to buy health insurance violates the commerce clause.

This is a woman who taught law at Harvard. She was the dean of Harvard Law. Which means she’s smarter than anybody else. She’s smarter than the dean of law at Columbia and she’s smarter than the dean at Stanford. She’s just as smart as the dean over there at Oxford. There’s nobody smarter. When you’re the dean of Harvard Law, you’re it. And she has no clue. She cannot conceive, she has no concept of the notion that the federal government cannot force citizens to buy anything. By the same token, the government can’t force you not to buy anything. Works both ways. So the lawyers are talking about this using the term coercion, coerce people. This compulsory contract, which is an oxymoron. And she’s frustrated. She doesn’t understand why people don’t understand this. She doesn’t understand why people think this is unconstitutional. It’s a mystery to her. You mean we can’t give people health care? I don’t understand. Here’s how she said it.

KAGAN: Why is a big gift from the federal government a matter of coercion? In other words, the federal government is here saying: We’re giving you a boatload of money. There are no matching funds requirement. There are no extraneous conditions attached to it. It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.



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